Reporters barred. Records delayed. How coronavirus shrouded local government in secrecy

Jessica Priest USA TODAY NETWORK

Thursday

Apr 9, 2020 at 11:44 AM

Her daughter was hospitalized after she drank from a well it poisoned.

It made the roads in her neighborhood so treacherous she has nightmares about her family being swallowed up in 20-foot-deep sinkholes.

And now the company responsible may get the green light to expand its operations without a public airing of her concerns.

Because of COVID-19, Pennsylvania environmental regulators canceled a hearing about changes to a natural gas liquids pipeline and, with it, what seems like Rosemary Fuller’s best chance to get the company to publicly answer for the damage it already caused.

“No public discussion, no reporting on issues by journalists present, no sharing of information, no publicity. Who benefits from that? Certainly not the residents impacted by this project,” Fuller said.

Pennsylvania is one 35 states to temporarily alter open government laws to curb the spread of coronavirus, according to a USA TODAY Network analysis of government press releases, newspaper articles and information collected by the Reporters Committee for Freedom of the Press and the National Governors Association.

The agencies in these states — from the smallest municipal bodies to the biggest government entities — now can hold meetings remotely. Some allow public comment only in writing, as in Fuller’s case.

They’re also delaying public records requests. Rhode Island, for example, extended the deadline to respond by 20 business days.

The changes in government access have not been without complaints or mishaps.

Some remote meetings have been marred by technical problems and pornographic hacks.

In other cases, officials have been accused of using social distancing measures to retaliate against journalists and block public access to meetings.

At a time when agencies are making life-or-death decisions in response to a fast-moving virus, open government advocates say transparency is paramount.

“The public needs to know what their governments are doing in response to the pandemic, and public records laws are in many cases the only legal right that the public has to information from the executive branch whether it be it local, state or federal,” said Adam Marshall, staff attorney for the Reporters Committee for Freedom of the Press.

While some advocates think this newfound reliance on technology could lead to more transparency, others worry they’re seeing a deterioration of the public’s access and ability to watchdog.

“Is open government going to be the first casualty of this coronavirus?” asked Amye Benshaver, who served for 25 years as an assistant attorney general in Kentucky and now works for an open government coalition there. “I knew immediately this was going to create challenges, and I’m hoping when this passes we can resume business as usual.”

Technical difficulties

The small East Texas city of Palestine bungled its first remote meeting on March 23. A staffer recorded the meeting on a cell phone and posted it to Facebook. But the footage was practically undecipherable.

“It is impossible, even with earbuds, to understand much of the discussion,” Palestine resident Will Brule commented on the post. “With media and the public being excluded, it reinforces the perception of the public that discussions and decisions are being hidden.”

Afterward, the city spent $2,500 on computers and software to improve its streaming capabilities in time for its March 30 meeting, which went smoother, City Secretary Teresa Herrera told the USA TODAY Network.

Other governmental bodies with the capability to use Zoom, one of the most popular platforms for streaming meetings, have had their meetings “Zoom Bombed”.

The Conejo Valley United School District in Thousand Oaks, California, was forced to adjourn its Zoom meeting on March 24 after an anonymous attendee began cursing and broadcasting porn.

A University of Texas at Austin meeting was bombarded with racial slurs on March 30.

“It was reprehensible. If the perpetrators are members of the UT community, they will be disciplined. We will also increase online security for all UT staff to prevent similar incidents,” University President Gregory L. Fenves said on Twitter.

Anonymous attendees also disrupted Zoom meetings at two high schools in Massachusetts by displaying swastikas and cursing, according to an FBI field office there, which recommended users make their meetings private and disable attendees’ ability to share their screens.

Protective or retaliatory measures?

Elsewhere in the country, journalists worry that public officials are using social distancing as an excuse to operate in secret or shun them from meetings as punishment for prior critical coverage.

The Public Safety Personnel Retirement System in Phoenix kicked out Arizona Republic reporter Craig Harris from its most recent meeting on the grounds his presence would go against CDC guidance. The Centers for Disease Control and Prevention had recommended by this time canceling gatherings of 10 or more people to prevent the spread of coronavirus.

Harris told the USA TODAY Network that he thinks he was denied access because of his prior reporting on the agency’s overall dysfunction, including a recent story about two PSPRS trustees who earned a commission by helping to sell a PSPRS employee’s house, which some described as unethical and a conflict of interest.

The Arizona Republic is part of the USA TODAY Network.

Christian Palmer, a spokesman for the PSPRS, said Harris’ claim of retaliation was “ridiculous” and that the agency’s agenda was written in consultation with the state attorney general. It made the meeting available online to the public.

Palmer added that the trustees Harris had written about were later cleared of any wrongdoing by a committee of four other trustees who consulted with staff and independent legal counsel. There are nine trustees total.

Journalists also have been barred from meetings about the COVID-19 response.

Mecklenburg County, North Carolina, commissioners met recently to talk by phone with the governor about its COVID-19 response. When two Charlotte-area reporters — Nick Ochsner of WBTV and Joe Bruno of WSOC-TV — attempted to cover the meeting, the commissioners disbanded to separate offices so they couldn’t hear them.

“I get that we’re in unusual and unprecedented times, and I think part of that situation stemmed from just not knowing how to handle this, but that doesn’t mean we don’t have open government,” Ochsner said. “I would contend that in times of crisis, open government is even more essential so that people have the information they need.”

Ochsner said a commissioner ultimately gave them the phone number to dial into the call so they heard what was discussed. Afterward, Mecklenburg County Manager Dena Diorio announced the state’s first stay-at-home order.

Mecklenburg County spokesman Danny Diehl said the governor requested his call with commissioners be private. To comply, the board consulted with its attorney and held the public portion of the meeting later.

Diehl said the reporters shouldn’t have been at the government center in the first place because it was closed and live video and social media feeds had been provided.

Unwatched, unanswered

When public agencies don’t meet, it can delay decisions that affect life, like access to clean drinking water and safe roads.

Fuller already knows the damage natural gas liquids pipelines can do.

Since Sunoco/Energy Transfer’s contamination of her water sickened her daughter last summer, the company has delivered hundreds of water bottles to her home each week. But Fuller wants it to devise a more permanent solution, like connecting her home to the public water utility and installing a reverse osmosis system.

She said the sinkhole she dreamt of — which later materialized — wasn’t the first and hasn’t been the last that the company’s existing pipeline has produced in her neighborhood. The pipeline sits about 150 feet from her home.

Fuller planned to ask about these issues at public hearings held by the Pennsylvania Department of Environmental Protection on April 14, 15 and 16 after she said her written comments were ignored.

The DEP canceled the hearings on March 17 because of COVID-19 and won’t reschedule them, agency spokesman Neil Shader told the USA TODAY Network.

Because Sunoco/Energy Transfer is asking to change its existing permit, he said, the agency isn’t required to hold a public hearing anyway. It only scheduled them because the permit was controversial when it was issued in 2017.

Both Shader and Sunoco/Energy Transfer Spokeswoman Lisa Coleman said the public can submit written comments until May 8. Then, the DEP will make a decision.

“As the DEP says in their March 17th press release, ‘all comments, whether submitted in writing or delivered at hearings, carry equal weight,’” Coleman wrote to the USA TODAY Network via email, declining to respond to Fuller’s claims per company policy on active or pending legal proceedings.

But Fuller disagreed.

“There is definitely a better chance of a response at a public meeting,” she said. “They have to respond there and then to the public, even if it's to say they don't know. There's more exposure, accountability and sharing of information.”

Temporary fix or long-lasting problem?

Open government advocates say that, in some cases, the new emphasis on using technology to broadcast public meetings could improve transparency.

Governmental bodies might reevaluate and retool the technology they're using to better serve the public. They could also make streaming meetings a regular course of business, said Daniel Bevarly, executive director of the National Freedom of Information Coalition.

But open government advocates also worry that state legislatures might see the pandemic as an opportunity to permanently increase the discretion of governmental bodies on decisions of openness during an emergency.

As a reaction to Hurricane Harvey, which left some government offices flooded and inaccessible, the Texas Legislature in 2019 passed a law allowing agencies to file so-called “catastrophe notices” with the Attorney General’s Office. Filing the notice can extend by up to two weeks the amount of time governmental bodies are allowed to respond to public record requests.

Eighty-nine governmental bodies in Texas have filed catastrophe notices related to COVID-19 since March 3.

At least 10 other states are also allowing records delays because of COVID19. Rhode Island extended the deadline to respond by 20 business days. A new law requires New Jersey agencies only to "make a reasonable effort, as the circumstances permit, to respond to a request for a government record" during an emergency. Before, they had seven days.

Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, worries that governmental bodies may abuse catastrophe notices. They are not required to prove a catastrophe has happened nor do they have to show how the event prevented a timely response. The Attorney General doesn’t have the authority to deny catastrophe claims.

But Shannon said that, right now, all she can do is watch the new law play out while continuing to preach to governmental bodies the benefits of proactively putting more information online, especially in times of crisis.

“More than ever,” she said, “government transparency is crucial.”

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